HKSAR v. TANG KWOK WAI

DCCC 1279/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1279 OF 2010

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REASONS FOR SENTENCE

1.  The Defendant has pleaded guilty before me to one charge of trafficking in a dangerous drug, namely 26.69 grammes of a powder containing 18.01 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.  The facts admitted by the Defendant revealed that at about 1005 hours on 27 September, 2010, PW1 PC52405  had patrolled to the rear staircase of 2^nd floor, Un On Building, Nos. 32-40 Un Chau Street, Sham Shui Po.  He saw the Defendant at the rear staircase on the 1^st floor. The Defendant was looking around and he held an item in his left hand.  PW1 walked towards the Defendant, who looked frightened when he saw PW1 and the Defendant put the item he was holding into a pocket of his trousers.  PW1 revealed his police identity. The Defendant immediately turned towards the door at the rear staircase and tried to flee.  PW1 intercepted and subdued the Defendant with the assistance of another police officer.  Upon search, PW1 found a bag containing two plastic bags containing suspected dangerous drugs in the left front pocket of the Defendant’s trousers. When shown the suspected dangerous drugs by PW1, the Defendant said that he was just helping someone to deliver it. PW1 arrested and cautioned the Defendant. Under caution, the Defendant admitted that the suspected dangerous drugs found from him was ketamine, that he was in debt, and helped someone to deliver it.  The suspected dangerous drugs was examined and found to be 26.69 grammes of a powder containing 18.01 grammes of ketamine. The street value was estimated to be HK$3,203.

3.  Section 109A of the Criminal Procedure Ordinance, Cap. 221, provides that no court shall sentence a person of or over the age of 16 years and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  This provision, however, does not apply to offences of trafficking in dangerous drugs, which are excepted offences.

4.  After hearing Counsel in mitigation, I adjourned sentence until today, so that I could have the advantage of  a  Background Report and Training Centre Report from the Correctional Services Department.  I did, however, emphasize to the Defendant that for offences of this nature, the usual sentence was an immediate custodial sentence, even for young offenders, and I was keeping all options of sentence open to myself. These reports are now before me and I have carefully considered their contents.  I have also borne in mind all that has been urged upon me on behalf of the Defendant on the last occasion and today.

5.  I do bear in mind the classical principles of sentencing and balance amongst the need for rehabilitation, retribution, deterrence and prevention. Whilst rehabilitation for a young offender is always an important consideration, and it also serves the interest of the community, the need for punishment of the offender and deterrence of others must be given due regard, and in most circumstances, for offences of this nature, they best serve the interests of the community as a whole. The appeal courts have made clear that save in very rare cases, a training centre order should not be imposed for trafficking in substantial quantities of dangerous drugs. Here, the quantity is substantial. The Defendant would have been fully aware of the gravity of what he was doing and the risks that would be involved if he was apprehended.

6.  The Defendant is now aged 16 years.  He is the only child of his parents.  He lives with his parents.  He left school in 2010 without finishing Form 3.  According to Mr. Liu Wai-pan, the officer from the Rehabilitation Unit1/Assessment of the Pik Uk Correctional Institution who prepared the Training Centre Report, the Defendant ‘treated his studies in a perfunctory manner and started as an unpromising student in his lower primaries. His problem remained the same with deteriorating learning attitude in his upper primaries. Not surprisingly, his academic performance went downhill. He then became even worse off after entering the secondary school. According to his school reports, he was academically poor throughout his secondary studies. Conduct-wise, he was given a number of demerits for playing truant, disrespecting his teachers, causing disturbance during lesson and wearing improper uniform, etc. Instead of living up to the required academic standard, he preferred to fool around, mixing with his like-minded peers in the nearby playgrounds, parks and cyber cafes.’  He also got affiliated with a group of ‘Wo On Lok’ triad related elements and had a triad protector.  After leaving school, it was arranged for the Defendant to work at his father’s wholesaling business.  But feeling bored with himself, he continued to mix with his undesirable friends, and quit his job from September, 2010 and led a loosely disciplined life.  He was arrested by the police for the present offence on 27 September, 2010 and granted police bail.  While on bail, on 7 November, 2010, he was arrested for an offence of possession of dangerous drugs, namely ketamine, for which he was sentenced on 16 February, 2011 to the Rehabilitation Centre.  He is currently in the Rehabilitation Centre.  In respect of his behavior since he has been remanded in the Rehabilitation Centre,  Mr. Liu said in the Training Centre Report “Upon his admission, he was assigned to the hairstyle and beauty workshop for his vocational training. Meanwhile, his family members took trouble to pay him regular visits, lending him due support and comfort. According to Mr. Tam Wai-ting, the Supervision Officer in charge of his case, defendant was fair in response to the training programmes. Although intensive counseling was rendered to him for better adjustment to the institutional life, he demonstrated little effort to tune in the disciplinary training with sluggish progress. During the training period, he was placed on one disciplinary report for offending good order and discipline for which he was awarded 7 days’ loss of privileges.  Mr. Liu also said in the report that “As for his present drug-trafficking charge, defendant defended that he had just kept the ketamine drugs on behalf of his girlfriend and denied having involved in any drug-peddling activities. In the interview, he reflected superficially on his past misdeeds and just defied assistance from the rehabilitation staff on assessment duties. Obviously, he did not realize that the present situation was largely by his own making nor develop any insight into his problems. Rather, he still seemed to indulge in his questionable mode of thinking. He had yet to give one the impression that he was plausibly determined to amend himself”.   Mr. Liu described that his performance so far during the current training period has been below average. He said that in order to help the Defendant develop more insight into his problems and cultivate his positive moral value as well as strengthen his law-abiding mindset, a period of comprehensive disciplinary training coupled with statutory supervision would definitely be beneficial to him. The Defendant has been examined by a medical officer who has confirmed that he is mentally and physically fit for detention in a training centre and he is considered suitable for detention in a Training Centre.

7.  In paragraph 8 of the Background Report, when he was asked about the present offence, the Defendant told the interviewing officer that he was foolish to get involved in the drug-trafficking act. He admitted to wanting to earn fast money since he owed a friend HK$5,000 because he had dropped his friend’s mobile phone and damaged it in September, 2010. He had said that it was his first time to do it and he was arrested.  He said he had learned a hard lesson.

8.  This is somewhat different from what he had said to Mr. Liu who interviewed him for the Training Centre Report, and more in line with what he said after his arrest and caution by the police.

9.  A lenient sentence is sought on behalf of the Defendant. His parents are both in Court today to show their support for the Defendant. I am told by Counsel on behalf of the Defendant that both the Defendant and his parents ask for an immediate custodial sentence rather than that the Defendant be sent to the Training Centre, although on the last occasion before me, Counsel for the Defendant had asked that reports be called for in view of the Defendant’s young age.

10.  Save for his plea of guilty, there is really little else in mitigation before me.

11.  In the Secretary for Justice v Hii Siew Cheng & Anor. [2009] 1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in ketamine. For trafficking 10 to 50 grammes of ketamine, a term of imprisonment of between 4 to 6 years is called for.

12.  In the instant case, the ketamine involved is 18.01 grammes.  For this quantity, I would consider a starting point of 4 ½ years, that is 54 months, to be appropriate if a term of imprisonment were to be imposed.

13.  Although the offence to which the Defendant pleaded guilty is an excepted offence in Schedule 3 of the Criminal Procedure Ordinance, Cap. 221, and section 109A is not applicable, the Court must still consider how best it is to deal with him, given the nature and circumstances of the offence, the interest of the community, the Defendant’s character and previous conduct and such.

14.  In Wong Chun Cheong v. HKSAR (2001) 4 HKCFAR 12, the Court of Final Appeal examined the circumstances under which a training centre order is to be imposed and what the relevant considerations are, and I have borne these in mind.

15.  In this case, after considering all the mitigating factors put forth, in particular, the Defendant’s clear record at the time of the present offence, his background, and his relatively young age, and based on the information available, I have no doubt that the Defendant is susceptible to peer influence and he lacks the ability to resist temptation and to observe discipline. If he were to be left on his own, I believe there is a every likelihood that he would continue down his present track to a point of no return. In the interests of the community and the Defendant himself, and for the prevention of crime,  in my view it is better that while it might still be possible to guide him back on track and for him to become a useful member of the community that this chance should be seized and acted upon. I agree with the reporting officer that a period of disciplinary training coupled with the statutory supervision upon release would be beneficial to the Defendant. Such training and supervision would not be available if a term of imprisonment were to be imposed.

16.  Having considered all the circumstances of the offence and the Defendant himself and, in particular, the age of the Defendant, and what the Training Centre can offer to young offenders such as the Defendant, I am not minded to send the Defendant to prison.  I propose to accept the recommendation of the Correctional Services Department and send him to a TrainingCentre. He is sentenced to the Training Centre.